How to Win Your Next Mediation, Part 1
by John K. Miles, Jr., Esq.
At first glance, the notion of winning at mediation seems like an oxymoron. We tend to associate winning and losing with jury trials. If a party feels confident in their case, then they proceed to trial and take their chances. There will be a winner and a loser. It is unlikely that both sides emerge from trial satisfied with the jury’s decision. Mediation is thought to be about compromise. Nobody wins and nobody loses. Conventional wisdom holds that a successful mediation is where both sides leave the mediation session a little unhappy because neither side got everything they wanted.
While it is true that mediation is based on compromise it is a mistake to believe that there aren’t winners and losers. I have mediated thousands of cases over the course of my career. In addition, I own the largest alternative dispute resolution firm in Georgia. Each month we mediate, arbitrate, and evaluate hundreds of cases. If mediation results in settlement, it is rare that both sides leave feeling equally dissatisfied. In almost every case one side is happier with the result. It isn’t too much of an exaggeration to say that someone wins and someone loses at most mediations. The winners are easy to identify. They are the ones with the thriving law practices.
In today’s legal environment it is more important than ever to be successful at mediation. When I began my legal career in 1988, attorneys tried far more cases than they mediated. Indeed, I didn’t mediate my first case until 1992, and at that time I had tried more than a dozen cases. In the 1980s trial was the most an effective way to resolve lawsuits. Court dockets were short and attorney fees were low. Therefore, taking cases to trial made sense. Today the number of lawsuits has increased significantly, and litigation costs are on the rise. Thus, mediation has become the preferred method for parties, particularly insurance companies and corporations, to bring litigation to a conclusion. Today’s successful litigator must be as successful at mediation as his predecessor was at trial.
Over the years I have had the opportunity to observe attorneys who obtain successful outcomes for their clients at mediation. These attorneys are well-prepared and know how to present their client’s case persuasively.
I have concluded that there isn’t a specific personality type associated with the attorney who succeeds at mediation. I have worked with attorneys who are aggressive and hard-charging and those who are polite and self-effacing. Either personality type can prevail at mediation. What matters most is how the attorney prepares his client and his case for mediation and how the case is presented.
Most mediations are won or lost long before the mediation session. The attorney who succeeds at mediation is rarely taken by surprise. It has been said that success is 10% inspiration and 90% perspiration and this holds true for those who win at mediation. Successful attorneys gather and analyze as much information about their case as possible before mediation. In addition, they learn as much as they can about their opponent’s case. You should prepare for mediation as you would for trial. No attorney would proceed to trial without knowing every piece of evidence backward and forward and what every witness would say on the stand. When properly prepared, attorneys can exploit the weaknesses of their opponent’s case while highlighting the strengths of their client’s case.
Mediators are committed to neutrality; however, like most people, they can be persuaded. Mediators, like jurors, are hearing the case for the first time and are most likely to be persuaded by facts and sound argument. Once persuaded, the mediator will be more effective in conveying arguments and information to the other side. Good preparation is essential to persuasion.
Preparation also allows attorneys to properly set their clients’ expectations. Success is based on exceeding client expectations. However, expectations can’t be exceeded until a client understands a realistic value of their case. The client will never appreciate the value of a settlement until they are made to see the strengths and weaknesses of their case and likely outcome at trial. I have seen many instances where an attorney obtains an excellent result at mediation only to see his client disappointed. It’s apparent the client’s expectations were not properly set.
ABOUT THE AUTHOR
John Miles, Esq. is the CEO of Miles Mediation & Arbitration. In addition to his executive duties, he mediates high value and complex matters on request at a per diem rate. He is in charge of neutral training and development at Miles.